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SCA/4985/2009 4/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4985 of 2009
=========================================================
VIJAYSINH
GUNWANTSINH PANDAV - Petitioner(s)
Versus
DIVISIONAL
CONTROLLER - Respondent(s)
=========================================================
Appearance
:
MR
IS SUPEHIA for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1,
RULE
SERVED BY DS for Respondent(s) : 1,
MR HS MUNSHAW for
Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 30/04/2010
ORAL
ORDER
Heard
learned advocate Mr. IS Supehia on behalf of petitioner, learned
advocate Mr. HS Munshaw appearing for respondent Corporation.
Initially,
notice for final disposal issued by this Court then on 23/7/2009,
following order has been passed by this Court is as under:
1. On 23/6/2009
this Court (Coram: S.R. Brahmbhatt, J) passed the following order :-
Notice for
final disposal returnable on 23.7.2009. In the meantime and till the
returnable date, specific cogent affidavit-in-reply is expected to be
filed on behalf of respondet indicating as to what prevented the
Corporation from reinstating the workman from the date of effect of
the award till its actual reinstatement and why he shall not be paid
full wages for that period.
The record shows
that respondent is served on 6/7/2009. None appears today to defend
the stand of the Corporation.
2. Petitioner
has filed this petition challenging omission on the part of the
respondent in complying with the order of the Tribunal dated
2/8/2002, wherein it was ordered that the workman was to be
reinstated with 25% back wages. In fact workman came to be
reinstated only on 13/5/2003. Therefore the inaction on the part of
the respondent in not reinstating workman in compliance with the
order and giving him only 25% back wages for even that period is
sought to be raised as grievance in this petition.
3. The
respondent was to be ready with their affidavit-in-reply. As it is
stated herein above none is present though served. Hence this Court
is of the view that let there by RULE, and by way of ad-interim
relief it is directed that the respondent shall deposit in the
Registry of this Court difference of amount of back wages payable to
the workman concerned/ present petitioner from the date on which the
award dated 2/8/2002 had become capable of being complied with till
the workman was actually reinstated, i.e. 13/5/2003, on or before
13/8/2009, failing which serious view of the matter would be taken.
4. Adjourned to
13/8/2009. Direct service permitted.
On
13/8/2009, this Court has also passed following order:
This Court vide
order dated 23/7/2009 issued rule and by way of ad-interim relief
directed the respondent GSRTC to deposit in the Registry of this
Court difference of amount of back wages payable to the workman
concerned on/or before 13/8/2009, i.e. today
Shri Munshaw
appears on behalf of the respondent Corporation and submits that the
time to deposit the difference of amount of back wages payable to
the workman-petitioner may be extend up to 18/8/2009 and he assures
this Court, by that time the amount would be deposited.
The request of
Shri Munshaw is accepted. The time to deposit the difference of
amount of back wages payable to the workman-petitioner is extended
up to 18/8/2009. There shall be no further extension in this regard.
Matter is adjourned to 20/8/2009.
In
present petition, petitioner employee has challenged order passed by
Labour Court, Junagadh in Recovery Application no. 240/2003 on
27/1/2009. The Labour Court has rejected Recovery Application filed
by petitioner under section 33(C)(2) of I. D. Act, 1947.
The
petitioner was working in S. T. Corporation as Electrician, who was
dismissed from service on 10/2/1997. Against dismissal, an
industrial dispute was raised by petitioner before Labour Court,
Junagadh being reference no. 100/97, which was decided on 2/8/2002.
The Labour Court has set aside dismissal order and granted
reinstatement with continuity of service with 25% back wages of
interim period. The Labour Court further directed to reinstate
petitioner in service within a period of thirty days from date of
publication of award. The award was published on 16/9/2002 and
workman was reinstated on 14/5/2003.
Learned
advocate Mr. Supehia appearing on behalf of petitioner submitted
that reinstatement with 25% back wages for interim period comes to
an end within a period of one month from date of publication of
award 16/9/2002. So, from date of termination 10/2/1997 to
16/9/2002, petitioner is entitled 25% back wages which was paid upto
13/5/2003. But, in fact, petitioner is entitled 100% wages being a
full wages from 16/9/2002 to date of actual reinstatement 14/5/2003
which has been denied by Corporation. There was a delay by S. T.
Corporation in reinstating petitioner in service.
He
submitted that under section 17 of Industrial Dispute Act, an award
is required to be published within a period of 30 days from it
received by Appropriate Government and within a period of 30 days
from date of publication under section 17 (A), an award become
enforceable against Corporation. So, on the date month is over from
date of publication 16/9/2002, an award passed by Labour Court is
required to be enforced against Corporation and Corporation must
have to be reinstated workman in service and also required to be
paid 25% back wages of interim period. On the contrary, S. T.
Corporation has reinstated workman on 14/5/2003. Therefore, for
claiming full wages from 16/9/2002 to 13/5/2003, Recovery
application was preferred before Labour Court, Junagadh under
section 33(C)(2) of I. D. Act, 1947.
The
S. T. Corporation has filed reply vide exh 7 denying averment made
in Recovery Application. Thereafter, matter was heard by Labour
Court, Junagadh because either of party has not led any oral
evidence. The question which was required to be examined by Labour
Court, whether from date on which award become enforceable or not?
And come to conclusion that workman must have to be reinstated by
respondent and workman is entitled full salary from date of which
award is become enforceable. Instead of that, Corporation has paid
25% back wages for aforesaid period from date of enforceable award
till date of actual reinstatement. So, for a period of eight
months, S. T. Corporation has paid 25% wages not full wages.
Therefore, Recovery application was filed.
He
submitted that Labour Court has not properly understood effect of
award and provision of Section 17 and 17(A) of I. D. Act, 1947.
According to award, Labour Court has granted reinstatement with 25%
back wages till date of reinstatement. Meaning thereby that upto
date of reinstatement, workman is entitled 25% back wages as wages
and not full wages. Vide exh 26, S. T. Corporation has paid Rs.
64,921/- for a period of 10/2/1997 to 13/5/2003 but S. T.
Corporation has not paid full salary from 16/9/2002 to 13/5/2003.
The Corporation has paid 25% wages w.e.f. 10/2/1997 but from
16/9/2002 that date workman is entitled full salary upto date of
reinstatement because award is not implemented immediately within a
period of one month by Corporation.
According
to my opinion, view taken by Labour Court in Recovery application is
clearly erroneous and finding given by Labour Court, Junagadh is
contrary to law. The petitioner is entitled full salary from
16/9/2002 to 13/5/2003, out of that 25% back wages has been paid
which is to be adjusted. Therefore, remaining amount of 75% of
aforesaid period is required to be paid by S. T. Corporation. The
view taken by Labour Court is erroneous apparently on face on record
because ultimately award is required to be implemented by S. T.
Corporation within a period of one month from date of publication
and if that award is not implemented accordingly, then from that
date onward workman is entitled full wages from S. T. Corporation
till date of actual reinstatement.
Therefore,
order passed by Labour Court in Recovery application no. 240/2003
dated 27/1/2009 is hereby quashed and set aside. It is directed to
S. T. Corporation to pay 75% wages for a period of 16/9/2002 to
13/5/2003 within a period of two months from date of receiving copy
of present order. Accordingly, present petition is allowed. Rule is
made absolute to that extent.
(H.K.RATHOD,
J)
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